Is this the time to cut a judge and save money?

By Peggy Fikacpfikac@express-news.net :
December 12, 2010

AUSTIN — Here’s one way to cut the budget at the Texas Court of Criminal Appeals: Trim it by one judge, at least temporarily.

The state’s highest criminal court made the suggestion this year during the first round of cuts to help address a looming, massive state budget shortfall.

Judge Charles Holcomb is retiring at the end of the year because of age restrictions — he’s 77 — and GOP Gov. Rick Perry would appoint his replacement to serve until the next general election.

But the nine-member appellate court, faced with a preliminary cost-savings target of $487,376 for the current fiscal period, said one option would be to ask Perry to leave the seat vacant until the end of the fiscal year next Aug. 31.

The court said this would save eight months of salary for Holcomb and a couple of staff members, for a total of $191,328. It also would leave the court with eight members, causing delays as the remaining judges took up the slack and setting up the possibility of a tie on some cases.

State leaders didn’t go for the idea, instead allowing the court to reduce its target savings. Now that leaders are directing another round of cuts, Presiding Judge Sharon Keller said she doesn’t know whether the court might again recommend the idea. “It’s really up to the governor,” she said, adding that she’s not sure if it’s an option since leaders exempted that item previously.

Whether it’s resurrected, the proposal shows the lengths some agencies will consider to deal with the state’s money problem.

While the savings would be a benefit, Keller said, “The downside would be the possibility of having a tie vote and having to hold a case until a new judge was appointed.” But she said the judges work well together and would seek to resolve any ties. “The biggest issue for us would be taking on the work of another judge — eight of us doing the work of nine.”

In the wake of the state’s last big budget crunch, in 2003, the Texas Supreme Court was able to save money thanks to a nearly seven-month delay between the 2004 resignation of Michael Schneider and Perry’s appointment of Phil Johnson. I’m told the court didn’t ask Perry to hold off on the appointment, but that the delay, for whatever reason it occurred, helped in budgeting.

Lawyer Jim Harrington of the Texas Civil Rights Project, no fan of the Court of Criminal Appeals, said reducing its size through attrition wouldn't trouble him. He noted that voters would have to amend the Texas Constitution to formally cut its size. “The thing to do is let two seats empty by attrition,” he said, avoiding the prospect of a tie. “Why not?”

* * *

The high-profile death-penalty case of Cameron Todd Willingham is the subject of an ongoing open-records battle in a lawsuit brought against Perry by the Houston Chronicle and Hearst Newspapers. Willingham was executed in 2004 for the 1991 deaths of his daughters in a fire. Death-penalty opponents, citing modern forensics, have said the blaze can't be proven to have been arson. Perry’s office has refused to release a clemency report he received before denying a stay of execution, calling it privileged. State District Judge Suzanne Covington last week denied a request by lawyers for the news organization to review the memo to Perry and supporting documents through an “attorneys' eyes only” protective order so they can better frame their argument that the memo doesn't fall under attorney-client privilege. Covington said she would review the documents to decide whether they are protected.

Her decision on that will go to the heart of the lawsuit.

* * *

Although state leaders have ruled out new taxes, many experts expect to see higher fees as the state confronts a budget shortfall that some put in excess of $20 billion. If Rep. Richard Raymond, D-Laredo, has his way, all such revenue-generating measures all would be referred to as taxes.

“It’s all about trying to bring in honesty in the process. Honesty in taxation. Honesty with the public,” Raymond said.

Perry has dismissed the idea that fees equate to taxes.

Some others agree, saying when fees are used to support particular, optional programs, it's not the same as a tax that goes to general revenue. The line, however, can be blurry sometimes. Nearly $3.7 billion in levies (largely fees and fines) collected for purposes ranging from helping low-income people with their electric bills to funding trauma care instead is helping to balance the current two-year budget.